Tuesday, March 25, 2014

LOOKING AT YESTERDAY'S PRO-MAIER BRIEFS, A SCPR ANALYSIS

UPDATE: 10:00 AM

Yesterday was the “due date” for the briefs in opposition to Cynthia Balas-Bratton’s Writ of Prohibition filed one week ago today (March 18, 2014) with the Ohio Supreme Court on the issue of whether or not George T. Maier will be allowed on the May 6, 2014 Democratic primary ballot.

Of course, as always, readers of the Stark County Political Report are linked up with the original source to have a look at the documents filed.

The best of the bunch is the one prepared by Erin Butcher-Lyden of the Ohio attorney general’s office.

Next best was that put together by Stark Countian and legal counsel for the Stark County commissioners David Bridenstine.

He has been assigned the task by the commissioners to represent Democratic members (St. John and Ferruccio, Jr) of the Stark Board of Elections (BOE) who became the majority when Husted voted with them (March 7, 2014) to break a tie between the Dems and Republican BOE members Braden and Cline on the question of the Maier presence on the ballot tried in a hearing before the BOE on February 21, 2014.

Bringing up the bottom, who else, but Thomas L. Rosenberg of Roetzel & Andress (of Columbus).

When one looks at the Balas-Bratton brief (by Attorney Craig T. Conley of Canton) and compares it to the three pro-Maier on the ballot briefs it is striking at the contrast between the two sides.

The key is whether or not Conley “has missed the mark” in thinking he does not have much if any of a burden to show that Husted abused his discretion in breaking the tie between the Democratic and Republican members of the BOE.

It will be interesting to see Conley’s reply brief (due not later than Thursday, March 27th) and in particular how he handles Butcher-Lyden’s attributing to him an allegation of Husted having committed an abuse of discretion in that Husted failed to remove St. John as Conley repeatedly demanded during much of the period leading up to the February 21, 2014 BOE hearing.

For if the Butcher-Lyden take on the primary issue (i.e. “abuse of discretion” in a very narrow sense of the expression) before the Supreme Court is the one that the court adopts then the SCPR thinks that George T. Maier is likely to survive the Balas-Bratton challenge and remain on the May 6th ballot.

The Report thinks that Butcher-Lyden misinterprets Conley’s focus on the St. John refusal to recuse and the secretary of state’s refusal to order him off the hearing panel as being in its essence an allegation of abuse of discretion. Rather the SCPR sees the St. John matter as an allegation that Balas-Bratton was denied her constitutional right to a fair hearing on February 21, 2014 and that the remedy should be that the Supreme Court recognize the infringement and invalidate the St. John vote which, of course, negates the Husted voted because an invalidated St. John vote keeps off the ballot on the 2 to 1 Republican majority vote.

Conley has repeatedly told the SCPR that he does not see his task as being to show the secretary abused his discretion.

However, Conley does cover the possibility that the Supreme Court will see it Buthcher-Lyden’s way in his argument that Husted failed to make a ORC 311.01(B)(9)(a)(b) determination on Maier qualification and thereby “abused his discretion” in refusing to fulfill his duty as assigned by the Ohio General Assembly in its passage of the aforementioned statute.

The secretary said he could not determine one way or the other whether or not Maier complied with (B)(9)(a)(b) because of its vagueness and lack of clarity.

The problem with the secretary taking an “I cannot determine” position is that the Supreme Court itself (according to Conley) has repeatedly said in its decisions on the issue at hand that (B)(9)(a)(b) are clear on their face and vagueness and lack of clarity are not an option.

So it makes legal sense to the SCPR that in failing to apply ORC 311.01(B)(9)(a)(b), the secretary abused his discretion.

Moreover, the secretary’s “err[ing] on the side of ballot access” is not a standard anywhere articulated in ORC 311.01. For Husted to basis his decision on language not included directly or by implication in the ORC 311.01 statutory scheme is yet another basis for his having committed an abuse of discretion.

While the SCPR did not look at the Bridenstine and Rosenberg briefs in much detail, a quick perusal indicates “more of the same’ in terms of comparing them to the secretary of state’s legal arguments.

His client, George T. Maier, readers will recall submitted some 254 pages to the BOE in his application process whereas Republican Larry Dordea had some 53 pages.

No surprise here.

If there is anything clear about how George and his brother Johnnie, Jr (executive vice chairman of the Stark County Democratic Party) do things political, the word that comes to mind for the SCPR is the word “bombast.”

It appears that Rosenberg and George Maier are a perfect match.

It would be surprising if the Ohio Supreme Court were to be affected by a bombastic-esque, volume approach to legal argument.

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B.A. - Political Science
J.D.
AN INDEPENDENT MINDED POLITICAL COMMENTATOR
Until 1976 I was a Republican. Since then I have considered myself a Democrat. So after long term stints of being a Republican, then a Democrat, I have come to the political position I feel most comfortable with - being an INDEPENDENT MINDED ANALYST who demands effectiveness of our politicians - Republican, Democrat or whatever.
I have changed my political affiliation to "non-partisan" by not voting in either political party primary election.